Recklessness

• What does "mens rea" mean in Latin?


  Guilty mind
• What is the exception to the requirement of mens rea in criminal law?


  Strict liability offences
• What are typical mens rea indicating words?


  Intentionally, Knowingly, Recklessly, Maliciously
• How is recklessness defined in criminal law?


  D takes an unjustifiable risk with knowledge of that risk
• How does subjective recklessness differ from indirect intention?


  Subjective recklessness involves a lower probability than "virtual certainty"
• What was established in the case of Cunningham (1957)?


  Subjective recklessness was defined
• What was the key question regarding the MR indicator word 'maliciously' in Cunningham's case?


  What does 'maliciously' mean in the context of mens rea?
• How did the Court of Appeal interpret 'malice' in Cunningham's case?


  It requires actual intention or recklessness regarding harm
• What was the main issue in the case of MPC v Caldwell (1982)?


  D claimed he was too drunk to realize the risk
• What was Lord Diplock's concern regarding the subjective test in Caldwell?


  It could allow guilty individuals to go free
• What are the two options for convicting under the Caldwell objective recklessness test?


  Risk must be obvious to a reasonable person or D realizes the risk
• What type of offences does Cunningham's subjective recklessness apply to?


  Offences against the person
• What type of offences does Caldwell's objective recklessness apply to?


  Offences against property
• What was the outcome of the case Elliot v C (1983) regarding objective recklessness?


  D was found guilty despite her inability to appreciate the risk
• What was the significance of R v G and Another (2003) in relation to Caldwell?


  The case overruled the Caldwell objective recklessness test
• What did the House of Lords question regarding the convictions in R v G and Another?


  Whether a D can be convicted for recklessness without perceiving the risk
• What is linked to blameworthiness in the context of recklessness?


  Conviction should depend on proof of a culpable state of mind
• What are the disadvantages of the subjective test in recklessness?


  It is difficult to prove what a defendant was thinking
• What criticism has been directed at Caldwell (1982) regarding precedent?


  Cases were decided solely because of adherence to precedent
• What was the issue with the interpretation of Parliament's intention in Caldwell (1982)?


  It was seen as a misinterpretation that needed correction
• What are the key differences between subjective and objective recklessness?

  • Subjective Recklessness:
  • D must recognize the risk
  • Applies to offences against the person
  • Objective Recklessness:
  • Risk must be obvious to a reasonable person
  • Applies to offences against property
• What are the advantages and disadvantages of the subjective test for recklessness?


  Advantages:

  • Focuses on the defendant's actual state of mind
  • More just for defendants who genuinely do not perceive risks

  
  

  Disadvantages:

  • Difficult to prove what a defendant was thinking
  • May leave victims without satisfaction from convictions
• What is the timeline of recklessness tests in criminal law?


  1. 1957 - Cunningham subjective recklessness established
  2. 1982 - Caldwell objective test introduced
  3. 2003 - Caldwell objective test abolished, leaving only subjective recklessness